교원의 실체적 권리와 교육권의 제한에 관한 연구

Restriction of teachers’ substantive rights and educational rights- focused on the Federal Supreme Court cases and theory in the U.S.A

When there is some conflict between the educational subjects for guarantee of teachers’ educational rights in US, compared with that of Korea, is based on objectively formed system rather than subjectively formed system of rights or authority. The cases relating to education have their strict theories and system compare to ours. So many cases in the court in U.S. have very important role to protect the rights of school teachers. There is little possibility of serious conflicts among the Federal Government, state governments and school districts. Most of educational rights primarily belong to states, so in principle the Federal Government cannot interfere with them in determining contents of education as long as it is not unconstitutional. and the court has important responsibility to solve the educational problems and it is recognized by citizen in the state. and the function to education policy-making is divided by the function to keeping the education policy. this system is making structure to set up the conflict in the education problems. In the relationship between the state government and school districts, though school districts actually work automatically, the school districts have most of educational rights and school districts only execute their policies. So it is hard to expect the legal conflicts between them ; though there are a few cases of political conflicts between them. the school teachers have many kinds of political rights in U.S. and they also have freedom of association by the U.S. constitution. Additionally it is hard to expect the conflicts of rights among educational authorities, parents and teachers, because many cases about these issues were already established systematically ; even though any conflict happen, it will be legally coordinated at all. In the cases and theory of court, school teachers have the right to associate for labor being inclosed in the freedom of speech. So school teachers, that is meaning they are public officer, don’t receive any restrict by state government when they make association kinds of political, religious and labor. Recognizing educational policies belong to them, the Federal Government and state governments give school districts much of local autonomy and permit them to execute educational policies ; as a result, this leads educational subjects themselves to solve their own conflicts in US. But they have any restriction in political rights when to protect the right of student and to carry out their duty to teach student in the school. In the other respect, they have these right it self as a right but just restricted on the case and code in the State. We need to receive this point when making a law in Korea.